August 2017 Newsletter – School Districts

There are often times when, in order to make a clear record, or to support recollections, it could be helpful to record or tape a conversation.

Under California law, it is illegal to intentionally and without the consent of all parties to a “confidential conversation,” either eavesdrop upon or record the conversation by means of any electronic amplifying or recording devise. Federal is more lax; however, it does not supplant the requirements under California law. A “confidential communication” includes “any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto.” It does not include communications made in a public gathering or other circumstance where one could expect to be overheard or recorded. It also does not include communications which evidence an actual crime or admission of an actual crime. Otherwise, the recording cannot be used for any purpose.

It does not matter what the topic of the conversation is, or whether the subject matter of the conversation is confidential. If the conversation takes place in a separate room, or under circumstances where the persons recorded might expect not to be overheard, the conversation is “confidential.” The conversation is confidential even if all parties expect the content may later be conveyed to a third party.

Legal advice should be obtained if you have any question regarding whether a conversation is illegal, before recording it. Violation of this law can lead to civil monetary damages, statutory fines of $5,000 per recording, and even criminal prosecution. Claims for violation of this law may be brought by individuals, corporations, or public entities.

Also, the recording, in order to be prohibited, must be intentional. If, for example, someone was dictating notes for himself or herself, and a conversation in the same room accidently got recorded, it is not a violation of the law.

In order to avoid civil liability, statutory fines, and possible criminal prosecution, if a communication is being recorded, all parties must be aware of the fact. Placing the recording device on the table, and telling everyone, at the beginning of the communication, that you are recording the conversation would satisfy this requirement. However, if the recording device is turned on but cannot be seen, or if it can be seen, but not obviously turned on, or if there is nothing on the recording verifying that the parties all know they are being recorded, the taping is illegal.

If you have any questions or concerns, or if you wish to further discuss any of these issues, please feel free to contact our law firm.

For more information regarding this article, please contact Ken Baisch at kbaisch@ericksonlaw.com. For questions in general regarding this newsletter, please contact Kristina Limon at klimon@ericksonlaw.com.